On April 13, 2010, the Maryland False Health Claims Act of 2010 (SB 279) was signed into law by Governor O’Malley. The Act prohibits a person from knowingly presenting or causing to be presented a false or fraudulent claim for payment or approval to a State health plan or program and creates a right of action against those who submit a false claim. The Act also creates robust protections for whistleblowers. Below is a summary of the Act which is to be codified from section 2-601 to section 2-611 of the Annotated Code of Maryland.

• A person may not knowingly present or cause to be presented a false or fraudulent claim for payment or approval. The concealment or improper reduction of a debt owed to the State (also known as a reverse false claim) is prohibited as well. Violators are subject to a fine of up to $10,000 and may be liable for up to three times the damages sustained by the State, and in no event, less than the loss suffered by the State.

• An individual may file a civil action on behalf of the State seeking any damages permitted by law as well as costs and attorney’s fees. An action filed by an individual shall remain under seal for at least 60 days, during which the State shall investigate the claim and may elect to intervene. If the State declines to intervene, the court must dismiss the case.

• If the State intervenes in a civil action brought by an individual, the State will have the primary responsibility for proceeding with the action and may withdraw from the action at anytime. If the State withdraws, the court must dismiss the case.

• If the State proceeds with an action and prevails, the person who initiated the action shall be awarded an amount between 15 and 25% of the proceeds of the action. However, if the court finds that the action is based upon publicly available information, the award is limited to 10% unless the individual is an original source. Courts do not have jurisdiction to hear claims brought by an individual who is not an original source, though the State may still pursue the action independently.

• Retaliation against any employee, contractor, or grantee is prohibited. Protected conduct includes: any lawful act taken in furtherance of the Act; objections to reasonably suspected violations; participation in any action brought under the Act; and any actual or threatened disclosure of information which the whistleblower reasonably believes evidences a violation of the Act. Prohibited retaliation includes discharging, suspending, demoting, threatening, harassing, discriminating against, or taking any other adverse action relating to the conditions of employment, contract, or agency.

• Whistleblowers suffering retaliation may file a civil action seeking injunctive relief including reinstatement and up to two times the amount of lost wages, benefits, and other remuneration, including interest. Whistleblowers may also seek any other relief necessary to make them whole as well and punitive damages.

For information about The Employment Law Group® law firm’s False Claims Act Practice, click here.

TELG attorneys Scott Oswald and Jason Zuckerman published an article in the April 8, 2010 edition of Employment Law 360 about the whistleblower provisions in the Patient Protection and Affordable Care Act of 2009, signed by President Obama on March 23, 2009. The Act includes several whistleblower provisions including a new private right of action for retaliation and amendments to the False Claims Act. The full article is available here.

To learn more about The Employment Law Group® law firm’s Whistleblower Retaliation Practice, click here.

On April 6, 2010, OSHA ordered the New Jersey Transit Corporation (NJT) to reinstate a rail worker and pay him over $500,000 for retaliation he suffered as a result of missing work due to a job related illness. In February 2008, the Complainant witnessed a contractor being electrocuted and burned to death after coming into contact with high voltage lines. The Complainant fully cooperated in the ensuing investigation and was found not to be involved. Shortly thereafter, the Complainant reported difficulty sleeping and emotional trauma. The Complainant was ordered into an employee assistance program (EAP) and was diagnosed with anxiety and post traumatic stress disorder.

Upon learning that the Complainant would miss work as a result of his illness, the Superintendent accused the Complainant of manipulating the EAP counselor and malingering. The Superintendent also launched an investigation, accusing the Complainant of “violating electrical operating instructions.” Later the Superintendent also stopped the Complainant’s EAP pay. After approximately six months, the EAP counselor cleared the Complainant to return to work in October 2008. However, NJT then suspended the Complainant without pay until February 2009 for safety violations.

While in the EAP, the Complainant filed a complaint with OSHA claiming NJT violated the Federal Rail Safety Act. OSHA found that the temporal proximity between the reported illness and adverse employment actions is sufficient to prove that the NJT retaliated against the Complainant. As a result, OSHA ordered NJT to reinstate the Complainant and pay him back pay. He has also been awarded $5,000 for pain and suffering; $50,000 for damage to his credit; and over $350,000 for the loss of his car and home. NTJ must also pay $75,000 in punitive damages due to “its reckless disregard for the law and complete indifference to the Complainant’s rights.” The Complainant and NJT have 30 days to object and request a hearing before the Department of Labor’s Office of Administrative Law Judges.

For information about The Employment Law Group® law firm’s Railroad Whistleblower Practice, click here.

On April 1, 2010, Administrative Law Judge Jeffrey Tureck found that BB&T violated the whistleblower provision of the Sarbanes-Oxley Act and ordered the bank to reinstate Amy Stroupe, awarding her approximately three years of back pay. Stroupe, a corporate fraud investigator, uncovered a $100 million Ponzi scheme funded in part with $20 million of fraudulent loans made by her employer. BB&T terminated Stroupe for pursing her investigation into a top loan producer and disagreeing with managers who were attempting to conceal the extent of BB&T’s involvement in the scheme. BB&T contended that it terminated Stroupe for discussing the investigation with other employees and for missing a half day of work without permission.

Judge Tureck rejected BB&T’s defense, holding that BB&T failed to prove by clear and convincing evidence that Stroup would have been terminated absent her protected activity. According to Judge Tureck’s opinion, BB&T’s classification of Stroupe’s behavior as insubordinate was not “reasonable or persuasive . . . Moreover, one thing that is clear from the evidence in this case is that the Complainant was never insubordinate. The record shows that she did what she was told to do, even when she disagreed.” Relying on comparator evidence, Judge Tureck also rejected the argument that Stroupe was terminated for missing a half day of work, concluding that “BB&T has not supported by clear and convincing evidence that it would have immediately terminated Stroupe for missing an afternoon of work without prior consent.”

The case is Stroupe v. Branch Banking & Trust Co. and a copy of the opinion is available here.

For more information about The Employment Law Group® law firm’s Sarbanes-Oxley Whistleblower practice, click here.